Case 18-2540, Document 43-1, 11/30/2018, 2446462, Page2 of 8 18-2540 IN THE United States Court of Appeals for the Second Circuit ____________________ JEFFREY SIEGEL, Administrator of the Estate of Moustapha Akkad, deceased, and Moustapha Akkad’s heirs; SOOHA AKKAD, individually; SUSAN GITELSON, Special Administrator of the Estate of Rima Akkad Monla, deceased, and Rima Akkad Monla’s heirs; ZIAD MONLA; Plaintiffs-Appellants, v. HSBC NORTH AMERICA HOLDINGS INC; HSBC BANK USA, N.A., HBUS, Defendants-Appellees. AL RAJHI BANK, fka Al Rajhi Banking; HSBC HOLDINGS PLC, Defendants. ______________________________ On Appeal from the United States District Court for the Southern District of New York (No. 17-cv-6593) (Hon. Denise L. Cote, District Judge) MOTION OF THE INSTITUTE OF INTERNATIONAL BANKERS, THE AMERICAN BANKERS ASSOCIATION, THE BANK POLICY INSTITUTE, AND THE CHAMBER OF COMMERCE OF THE UNITED STATES FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE OF THE DISTRICT COURT MARC J. GOTTRIDGE LISA J. FRIED BENJAMIN A. FLEMING HOGAN LOVELLS US LLP 875 Third Avenue New York, New York 10022 (212) 918-3000 [email protected] [email protected] [email protected] Counsel of Record for Amici Curiae Case 18-2540, Document 43-1, 11/30/2018, 2446462, Page3 of 8 STEPHANIE WEBSTER THOMAS PINDER INSTITUTE OF INTERNATIONAL AMERICAN BANKERS BANKERS ASSOCIATION 299 Park Avenue 1120 Connecticut Ave, NW New York, NY 10171 Washington, DC 20036 (212) 421-1611 (202) 663-5000 GREGG ROZANSKY STEVEN P. LEHOTSKY BANK POLICY INSTITUTE U.S. CHAMBER LITIGATION 600 13th Street, NW CENTER Washington, DC 20005 1615 H Street, NW (202) 289-4322 Washington, DC 20062 (202) 463-5337 Additional Counsel for Amici Curiae Case 18-2540, Document 43-1, 11/30/2018, 2446462, Page4 of 8 STATEMENT OF INTEREST The Institute of International Bankers (“IIB”), the American Bankers Association (“ABA”), the Bank Policy Institute (“BPI”), and the Chamber of Commerce of the United States of America (the “Chamber”) (collectively, “amici”), respectfully move this Court pursuant to Federal Rule of Appellate Procedure 29 and Local Rule 29.1 for leave to file the proposed brief attached herewith as Exhibit A as amici curiae in support of the Defendants-Appellees and urging that this Court affirm the judgment of the district court. As more fully detailed in the proposed brief, amici are trade associations and advocacy groups with a strong interest in the subject matter of this case. Among them, the IIB, ABA and BPI represent the interests of a large number of foreign and domestic entities involved in the banking and financial services industries; the Chamber represents the interests of companies and professional organizations in every industry sector across the country. Amici’s members, in the aggregate, employ millions of Americans and deploy trillions of dollars in banking and non- banking assets. Amici regularly appear before this and other federal courts as amici curiae in cases raising significant legal issues that bear on their members’ concerns. Of relevance to the matter now before this Court, amici have addressed in previous briefs to this Court issues involving the appropriate scope of the Anti- Case 18-2540, Document 43-1, 11/30/2018, 2446462, Page5 of 8 Terrorism Act, 18 U.S.C. § 2331 et seq. (the “ATA”), as amended by the Justice Against Sponsors of Terrorism Act (“JASTA”), codified at 18 U.S.C. § 2333(d). Amici have a particular interest in this case because it raises significant legal issues related to the scope of secondary civil liability under the ATA and JASTA and the proper the application of the standard of Bell Atlantic Corp. v. Twombly, 550 U.S 544 (2007) to ATA/JASTA pleadings tested on motions to dismiss. As explained in amici’s proposed brief, this is one of a series of cases increasingly brought by plaintiffs on a secondary liability theory against financial institutions and a variety of other legitimate business entities in various industries, seeking statutory treble damages even though the defendants did not (as the statute requires) knowingly provide substantial assistance to the persons who actually committed the acts of terrorism. Despite their deficiencies, such cases carry the risk of substantial damages awards and reputational harm to business entities and, if incorrectly allowed to survive motions to dismiss, will improperly expose them to particularly expensive and difficult discovery, because the matters underlying such actions necessarily take place abroad. In addition, amici and their members have a substantial interest in the outcome of this action because, by extending civil secondary liability beyond the bounds set by Congress, Plaintiffs’ expansive and atextual interpretation of the 2 Case 18-2540, Document 43-1, 11/30/2018, 2446462, Page6 of 8 ATA and JASTA would discourage banks in the U.S. from providing important services, such as dollar clearing and the provision of U.S. currency, to foreign banks—services that are vital to the functioning of the global financial system and international trade. Amici’s motion for leave is unopposed. Defendants-Appellees have consented to the filing of amici’s proposed brief, while Plaintiffs-Appellants take no position on the relief sought by this motion. Wherefore, amici respectfully move this Court for leave to file the accompanying Brief as Amici Curiae in Support of Defendants-Appellees. 3 Case 18-2540, Document 43-1, 11/30/2018, 2446462, Page7 of 8 Dated: New York, New York November 30, 2018 Respectfully submitted, HOGAN LOVELLS US LLP By: /s/ Marc J. Gottridge Marc J. Gottridge Lisa J. Fried Benjamin A. Fleming 875 Third Avenue New York, New York 10022 (212) 918-3000 [email protected] [email protected] [email protected] Counsel of Record for Amici Curiae INSTITUTE OF INTERNATIONAL AMERICAN BANKERS BANKERS ASSOCIATION Stephanie Webster Thomas Pinder 299 Park Avenue 1120 Connecticut Ave, NW New York, NY 10171 Washington, DC 20036 (212) 421-1611 (202) 663-5000 BANK POLICY INSTITUTE U.S. CHAMBER LITIGATION Gregg Rozansky CENTER 600 13th Street, NW Steven P. Lehotsky Washington, DC 20005 1615 H Street, NW (202) 289-4322 Washington, DC 20062 (202) 463-5337 Additional Counsel for Amici Curiae 4 Case 18-2540, Document 43-1, 11/30/2018, 2446462, Page8 of 8 CERTIFICATE OF SERVICE I hereby certify that, on November 30, 2018, an electronic copy of the foregoing Motion of the Institute of International Bankers the American Bankers Association, the Bank Policy Institute and the Chamber of Commerce of the United States for Leave to File a Brief as Amicus Curiae was filed with the Clerk of the Court using the ECF system and thereby served upon all counsel appearing in this case. /s/ Marc J. Gottridge Marc J. Gottridge 5 Case 18-2540, Document 43-2, 11/30/2018, 2446462, Page1 of 42 Exhibit A Case 18-2540, Document 43-2, 11/30/2018, 2446462, Page2 of 42 18-2540 IN THE United States Court of Appeals for the Second Circuit ____________________ JEFFREY SIEGEL, Administrator of the Estate of Moustapha Akkad, deceased, and Moustapha Akkad’s heirs; SOOHA AKKAD, individually; SUSAN GITELSON, Special Administrator of the Estate of Rima Akkad Monla, deceased, and Rima Akkad Monla’s heirs; ZIAD MONLA; Plaintiffs-Appellants, v. HSBC NORTH AMERICA HOLDINGS INC; HSBC BANK USA, N.A., HBUS, Defendants-Appellees. AL RAJHI BANK, fka Al Rajhi Banking; HSBC HOLDINGS PLC, Defendants. ______________________________ On Appeal from the United States District Court for the Southern District of New York (No. 17-cv-6593) (Hon. Denise L. Cote, District Judge) [PROPOSED] BRIEF OF THE INSTITUTE OF INTERNATIONAL BANKERS, THE AMERICAN BANKERS ASSOCIATION, THE BANK POLICY INSTITUTE, AND THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICI CURIAE IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE OF THE DISTRICT COURT MARC J. GOTTRIDGE LISA J. FRIED BENJAMIN A. FLEMING HOGAN LOVELLS US LLP 875 Third Avenue New York, New York 10022 (212) 918-3000 [email protected] [email protected] [email protected] Counsel of Record for Amici Curiae Case 18-2540, Document 43-2, 11/30/2018, 2446462, Page3 of 42 STEPHANIE WEBSTER THOMAS PINDER INSTITUTE OF INTERNATIONAL AMERICAN BANKERS BANKERS ASSOCIATION 299 Park Avenue 1120 Connecticut Ave, NW New York, NY 10171 Washington, DC 20036 (212) 421-1611 (202) 663-5000 GREGG ROZANSKY STEVEN P. LEHOTSKY BANK POLICY INSTITUTE U.S. CHAMBER LITIGATION 600 13th Street, NW CENTER Washington, DC 20005 1615 H Street, NW (202) 289-4322 Washington, DC 20062 (202) 463-5337 Additional Counsel for Amici Curiae Case 18-2540, Document 43-2, 11/30/2018, 2446462, Page4 of 42 RULE 26.1 STATEMENT OF CORPORATE INTEREST No amicus is owned by a parent corporation, and no publicly held corporation owns more than ten percent of stock in any amicus. /s/ Marc J. Gottridge Marc J. Gottridge Counsel for Amici Curiae i Case 18-2540, Document 43-2, 11/30/2018, 2446462, Page5 of 42 TABLE OF CONTENTS Page STATEMENT OF INTEREST..................................................................................1 INTRODUCTION .....................................................................................................4 SUMMARY OF ARGUMENT .................................................................................9 ARGUMENT ...........................................................................................................12 I. THIS COURT SHOULD REAFFIRM THE LIMITS ON SECONDARY